criminal nature. This distinction is rendered more apparent by referring to title 2, part 6, of the Criminal Code, sections 950, 951 and 952. It is clear therefore that no right of appeal was given by the Code to either party in this proceeding.* It cannot be claimed that an appeal was authorized by section 749, which provides for appeals from judgments rendered by a court of Special Sessions.

It is true the defendant entitled the proceedings as in Special Sessions, but that did not affect the rights of the parties.

The proceedings were not in a court of Special Sessions, but were before the defendant as police justice.

There is a marked distinction between courts of Special Sessions and courts held by police justices under special provisions of law both in the Constitution and the Code of Criminal Procedure. People v. Trumble, 1 N. Y. Crim. Rep. 443. It was also held in People v. Burleigh (same volume, 522, 523), that where authority is conferred upon a particular officer or magistrate giving to him special jurisdiction in a criminal matter with special directions as to the mode of procedure, he must be deemed to act as an officer and not as a court of Special Sessions.

This principle is decisive in this case.

Section 900 gave special jurisdiction to a police justice with special directions as to the mode of procedure, and the justice must be deemed to have acted as an officer and not as a court of Special Sessions.

The writ of certiorari is therefore a proper remedy under which to review the proceedings.

We also think the defendant erred in excluding testimony showing it was unsafe for the wife to remain in the house with the accused. There is no rule of law requiring a wife to remain under the roof of a brute, in constant danger of life and limb, under pain of starvation. It was, therefore, competent for the relator to show that she had reasonable cause to leave the house

* The rule is now changed by L. 1884, ch. 872, amending Co. Crim. Proc. § 515, and appeal is now the proper proceeding in all cases.

where she was in imminent danger of suffering personal violence at the hands of her husband.

If this testimony had been received, the offense of which the accused was charged would have been clearly made out under the statute.

This statute has been under the consideration of this court since its amendment and its provisions fully discussed. People ex rel. Douglass v. Naeher, 1 N. Y. Crim. Rep. 513.

The decision of the police justice must be vacated and set aside, without costs.

BARNARD, P. J., and DYKMAN, J., concur.

Court of Oyer and Terminer—Warren County.

October, 1884.

PEOPLE v. DURRIN.

PLEA OF STATUTE OF LIMITATIONS NOT TO BE RAISED BY

DEMURRER.

A demurrer cannot be interposed upon the ground that it appears by the indictment that the prosecution is barred by the statute of limitations.

The indictment in this case showed that the offense was committed more than five years before it was found and filed. It was silent as to the presence in or absence of the defendant from, the state, during the time between the commission of the offense and the time when it was found. Defendant demurred upon the ground (Code Crim. Pro. § 323, subd. 5) that the indictment contained matter which if true would constitute a legal bar to the prosecution. Held, that such an indictment was good. The statute of limitations is not of the nature or character of an exception which forms part of the offense, and it need not be set out and negatived in the indictment.

The defense of the statute of limitations cannot be set up by special plea, under the Code of Criminal Procedure, but may be proved under the general issue of not guilty.

DEMURRER to an indictment.

The facts appear in the opinion.

J. M. Whitman, attorney, for Henry Durrin, defendant.

H. A. Howard, district attorney, for the people.

POTTER, J.-The defendant was indicted for the crime of bigamy at a term of this court held in Warren county on September 13, 1883. The indictment charges that the defendant on February 25, 1869, married Mary Wallace, and that on July 7, 1877, he married Eunice T. Tuesdale, and that the said Mary Wallace to whom he was first married, was alive on said July 7, 1877.

To this indictment the defendant demurred upon the ground that the indictment contained matter which, if true, would constitute a legal bar to the prosecution, in this: that it charged the said crime of bigamy to have been committed on July 27, 1877, and it shows the said indictment to have been found on September 13, 1883, a period of more than five years after the alleged crime was committed. The first question is whether the defense of the statute of limitations to the crime charged in this indictment, can be presented by way of a demurrer. I may say at the outset that the authorities upon this question are by no means numerous, and those to be found in the states where the question had been raised, are not uniform.

It will not be questioned that under the Code of Civil Procedure, as well as under the system of pleading which prevailed before the adoption of that Code, a defendant could not demur to the complaint, upon the ground that the statute of limitations had run upon the demand, where such fact appeared upon the face of the complaint. The objection that the cause of action was barred by the statute of limitations, must be raised by answer. Sands v. St. John, 36 Barb. 628, and the cases referred to in the opinion in that case.

It was also held in numerous cases that by both systems of pleadings in civil actions, it was not proper to allege in a complaint any facts to avoid the statute of limitations-such as

that the defendant has not resided in the state within six years before the commencement of the action. Lefferts v. Hollister, 10 How. Pr. 383; Butler v. Mason, 16 Id. 546. The object and purpose of pleadings in civil and criminal actions are substantially the same. They are to produce material issues of fact or of law, and to provide the most convenient and approved modes of trying the issues. While the rules are not always the same in civil as in criminal actions, yet, where a cause of action and a criminal offense are or may be barred by a statute of limitations and the operation of the statute of limitations is avoided in both cases by the same fact or condition, I apprehend, the rule or modes of pleading such fact or condition should be substantially the same. 1 Bish. Crim. Pro. & 321.

This, no doubt, is the general rule; but at the same time it is subject to exception or modification by any well considered precedent to the contrary, by a court of the same state as that in which the question may subsequently arise, or the appositeness of the matter to the allegations of the complaint and indictment, or by the completeness of the analogy between the matters, which avoids the operation of the defense in a civil or criminal action.

The operation of the statute of limitations in this state is suspended in both civil and criminal actions by the absence of the defendant from the state. In civil actions we have seen that the statute of limitations cannot be presented by demurrer but must be by answer, and that it is not correct pleading to allege in the complaint the matter which would suspend the operation of that statute. Lefferts v. Hollister supra; Butler v. Mason, supra. Accordingly, we do not find a criminal case in this state, in which a demurrer to an indictment, showing that the period of limitation had expired after the time of the commission of the crime, and before the finding and filing of the indictment for such crime.

The case of People v. Roe, 5 Parker, 231, was a case where it appeared upon the face of the indictment that the offense was committed some twelve years before the indictment therefor was found, and the defendant interposed a plea of the statute of limitations.

In People v. Van Stanvoord, 9 Cow. 655, the indictment charged that the crime was committed more than three years before the indictment was found. The defendant pleaded not guilty, and upon a trial was convicted notwithstanding the statute of limitations upon a motion in arrest upon the ground that the statute had run against the offense, as appeared from the record, the conviction was sustained.

The court held that the day laid in the indictment must be regarded as immaterial for all purposes, and that it was to be intended after conviction that the offense found upon the trial was within the three years.

If a motion in arrest of a judgment showing upon its face that the statute of limitations had run upon the offense when the indictment was found, would not avail to reverse the conviction, how should a demurrer to an indictment alleging the offense to have been committed more than the period of limitation, defeat the prosecution?

The time alleged is not material and the prosecution would be allowed to depart from the time alleged and prove the time of the commission of the offense was within the period of limitation. As was said by the court in 9 Cow. supra. after conviction it would be intended that the offense proved was within the then three years, so in case of a demurrer where the time alleged is without the period, the prosecution will be allowed to prove the offense was committed within the time. Pursuing the same line of reasoning, it has been held that a motion to quash an indictment, upon the ground that its allegations showed the offense was committed without the period of limitations, would be denied. United States v. Cook, 17 Wallace, 179. The reason assigned for such holding is that "such a proceeding would deprive the prosecutor of the right to reply or give evidence that the defendant fled from justice and was within the exception or suspension of the statute.

A demurrer upon that ground to such an indictment is subject to the same objection for it would practically hold the prosecutor to a time which is immaterial, and always variable by proof.

Bishop in his work upon criminal proceedings, at section 741, says, 'But this plea, demurrer, is not very frequently re